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On The Joint Intention In The Article 25 Of The Criminal Law Of The People's Republic Of China

Posted on:2020-05-07Degree:MasterType:Thesis
Country:ChinaCandidate:Z R HanFull Text:PDF
GTID:2416330575480862Subject:Criminal Law
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Influenced by the theory of criminal law of the Continental law,especially the theory of the criminal law of Japan,even though there is the paragraph 1 of Article 25 of the criminal law of the People's Republic of China,compared with the the theory of traditional Crime-formation in China,scholars of different positions have different interpretations of this clause: A joint crime refers to an intentional crime committed by two or more persons jointly.Especially,there are different understanding of the positioning and connotation of the joint intention,so it is necessary to review the basic concept in the theory of the criminal law in China,in order to solve the concrete problems in judicial practice.Taking the system stability and the theory self-consistency as the standard,while taking clarify the independent criminal discourse system of joint crime as the target,this paper develops the demonstration.Starting with the current legislation system of joint crime in China,the first part of the paper proposals the questions to explore the connotation and extension of joint intention,combining with the practical cases such as inconsistent intentional content and secret helping behavior,as well as the judicial interpretation provisions of "knowing accomplice" and "conspiracy in advance" on behalf of practical attitude.The second part puts forward the core point that the formation foundation of joint intention is the intention liaison.The emphasis on intentional connection is the pursuit of the consistency of subjective connection,rather than the requirement of the exact sameness of intentional content.The joint intention and intention liaison is a main line throughout the whole paper,and the study on the relationship between the two factors becomes the starting point of this paper.The establishment standard,appearance form and system function of intention liaison are discussed respectively,and the importance of intention liaison in the determination of joint crime is clarified.On this basis,the author challenges the viewpoint that the common theory of behavior is interpreted as "a joint intention to commit a crime" in the paragraph 1 of Article 25 of the criminal law in three aspects.At the same time,putting forward opinions on the judgment of intention liaison in network joint crime,the application of judicial interpretation of knowing accomplice,and the explicitness of intention liaison and joint intention.The third part of the paper combines the joint principal offender to carry out research.The principle of "partial implementation of full responsibility" is regarded as the basis of substantial punishment of common principal criminals,and the legal basis represented by the domination theory of criminal facts is investigated accordingly,stressed the importance of intention liaison.In describing the joint crime pattern shows the theory of mutual relations,the position of the theory of common act should not be taken,because its argumentation logic does not comply with the provisions of Article 25 of the Criminal Law of the People'sRepublic of China,and even there is a suspicion of reducing the independent value of the theory of the joint crime,because it weaken the function of the intention of constitutive requirements,acknowledges the common factual action.It is normal to form identical intention based on sufficient Intention liaison,but for the cases with inconsistent intentional-content,it is certain to establish a joint crime in the scope of intention liaison by investigating separately in accordance with the specific circumstances of "without intention liaison","intention liaison deviation" and "transcendence of intention liaison";Consistent with it,the joint theory of some crimes advocates the establishment of joint crimes within the scope of overlapping elements,which is reasonable.It is an indispensable condition of the current joint crime legislation system to insist on intention liaison,the unilateral joint principal offender is negated in our current legislation system of joint crime.The emphasis on the meaning of intention liaison,leading to the negation of Unilateral Accomplice,does not mean that " does not constitute a joint crime,it will form a punishment loophole." It is an indispensable condition of the current joint crime legislation system to insist on intention liaison.In the fourth part of the paper,on the basis of proving the negative theory of unilateral accomplice,the relevant theories that may be the basis of the punishment of "secret helping behavior" are discussed,including the expansion of the concept of principal offender,the theory of using behavior,the theory of criminal preparation and so on,it is just a primary attempt to this issue,there will be subject to the further studies.Firstly,the range of helping behaviors with punitive nature should be examined,because of taking the negative attitude towards unilateral accomplice,it is important to explore the punishment path in combination with other theories.
Keywords/Search Tags:Joint Crime, Joint Intention, Intention Liaison, Joint Principal Offender, Unilateral Accomplice
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